This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2011AP2970

Cir. Ct. No.2011SC3476

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT IV

William X. Kealey,

Plaintiff-Respondent,

v.

Brayden Holmquist,

Defendant-Appellant,

Kerrah Holmquist,

Defendant.

APPEAL
from a judgment of the circuit court for Rock County:james
E. welker, Judge.Affirmed.

¶1BLANCHARD, J.[1]
This court is presented with two issues in this tenants’ appeal, brought pro
se, from a judgment of eviction awarded to their landlord, William Kealey.The tenants, Brayden and Kerrah Holmquist, state
the issues as follows:

(1)“Did the court … err in leading Kealey’s
examination of his witness, … and [in] allowing [the witness] to take over as
speaker for Kealey in the hearing?”

(2)“Did the court err by not recognizing
[the tenants’] rights under the Wisconsin Landlord/Tenant Protection Act and
Wisconsin Statute 846.35(2)(a)2.,” a statute (now repealed) that addressed a
tenant’s right to withhold rent equal to the security deposit when the rented
property is sold at foreclosure?

This court is not persuaded by the
Holmquists’ limited and undeveloped arguments on each issue.Accordingly, the judgment is affirmed.

BACKGROUND

¶2In November 2011, Kealey filed a small claims action for
eviction and a money judgment against the Holmquists.Kealey alleged, in part, that the Holmquists
failed to pay full rent on a residential unit for the months of April through
August and failed to pay any rent for the months of September through November.

¶3At a hearing on the eviction, Kealey represented himself,
while the Holmquists appeared with an attorney.There was no dispute that there was a rental agreement.However, there was a dispute as to whether
the Holmquists were current on rent as of September 8, 2011.

¶4Kealey called his first and only witness, the property
manager for the rental unit, Steve Budick.Kealey elicited testimony from Budick that rent was not received from
the Holmquists for September, October, or November.Kealey then asked the circuit court, “What
else do you want to know?”The court
responded, “It’s your case, sir[,]” but then instructed Kealey briefly on what Kealey
needed to prove, and allowed Kealey to continue questioning Budick.

¶5When Kealey then continued with a line of questioning about
rent that did not seem to provide any additional material evidence, the circuit
court asked Kealey if Kealey thought he might need an attorney, because, “You obviously
don’t know what you’re doing here.”Budick
then indicated that he usually “speak[s] for” Kealey and deals directly with
Kealey’s tenants, including collecting rent from them.

¶6At this point in the hearing, the court began to question Budick,
asking him how much unpaid rent had accumulated, whether and when he served notice
to quit or pay rent, and whether the tenants were still in possession of the
premises. In the course of Budick’s
testimony in response to the court’s questioning, Budick identified exhibits providing
evidence to support eviction and damages.In particular, Budick identified an exhibit showing a notice to
terminate and confirming unpaid rent and water bills.

¶7On cross-examination, the Holmquists’ attorney asked Budick
whether he and the Holmquists had entered into an agreement allowing the
Holmquists to pay a reduced amount of rent.Budick stated that he and the Holmquists agreed in April that Kealey
would accept reduced rent of $1,000 per month (instead of $1,200 per month),
but that the Holmquists broke this agreement by not paying even the reduced
amount for September, October, and November.Budick also testified that the Holmquists informed him that they were concerned
about the possibility of foreclosure on the rented property in July 2011.In addition, Budick testified that the
Holmquists informed him that they intended to use their security deposit to pay
September and October rent, but that Budick told them that the security deposit
was “void” because of unauthorized changes the Holmquists had made to the rental
unit.

¶8Before the close of the hearing, the circuit court again questioned
Budick, asking whether the Holmquists agreed that Budick could retain their
security deposit to cover any damage associated with the alleged unauthorized
changes to the rental unit.Budick
testified that they did not expressly agree to this, and testified further that
in his view nothing legally permitted him to retain the security deposit at the
time the Holmquists vacated the unit.

¶9The Holmquists produced no witnesses and neither of them
testified.

¶10Based upon Budick’s testimony and admitted exhibits, the
circuit court found that Budick had provided the Holmquists with a notice to
vacate and that the Holmquists had failed to vacate.It further found that Kealey was entitled to
a judgment of eviction and a writ directing the sheriff to put Kealey in
possession of the premises.However, the
court also found that a decision on Kealey’s request for money damages was premature,
apparently because Kealey had not yet issued any notice to the Holmquists
stating that he was keeping the security deposit and, if so, on what basis.

¶11Accordingly, the circuit court entered a judgment of eviction
and a writ of restitution directing the sheriff to put Kealey in possession of
the premises, but denying Kealey’s request for money damages.

¶13As indicated above, the Holmquists first argue that the circuit
court erred “in leading … Kealey’s examination of his witness, Steve Budick”
and in “allowing [Budick] to take over as speaker for [Kealey] in the hearing.”

¶14Taking the second part of this argument first, this court sees
no possible merit in it.Budick did not
“take over” for Kealey as “speaker” or take over in any other sense.Rather, Budick simply testified as the only witness,
giving relevant testimony as the property manager.

¶15Turning to the first part of the Holmquists’ argument, this
court is uncertain what the Holmquists mean to claim when they argue that the
court erred by “leading” examination of Budick.The only colorable argument this court can discern from the Holmquists’
briefing is that the Holmquists mean to contend that the circuit court unfairly
involved itself in the proceedings, acting in effect as an advocate for
Kealey’s interests once it appeared that Kealey did not understand how to prove
up his case.This involved the court
eliciting testimony from Budick that established Kealey’s right to an eviction.If this is the Holmquists’ argument, the
court is not persuaded for the following three reasons.

1.Appellants’
Failure to Properly Develop Argument on Appeal

¶16First, the Holmquists’ argument is inadequately developed, and
this court generally declines to review such arguments.SeeState
v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (the court
of appeals need not address the merits of inadequately developed arguments that
do not conform to rules of appellate procedure).In Pettit, the court declined to
address an appellant’s purported arguments that violated appellate rules, were
not developed, and failed to cite legal authority.Id.Similar to the situation in Pettit,
the Holmquists speak in unexplained generalities, and provide no citations to
legal authority, or even any legal reasoning, in support of an argument that the
circuit court’s questioning was improper.This approach violates Wis. Stat.
Rule 809.19(1).[2]Their entire argument on this issue,
apart from the issue statement and brief recitation of record facts, consists
of two sentences.

¶17It is true that courts may make allowances for failure to abide
by briefing rules.SeePettit, 171 Wis. 2d at 647.It is also true that the Holmquists are pro se on appeal and that the
court may give leeway to a pro se party.See Waushara County v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d
16 (1992).However, pro se parties must
still comply with relevant rules of procedural and substantive law.Id.This court generally will not overlook failures to comply with the rules
when a brief is “so lacking … [in] substance” that the court would have to
wholly develop an appellant’s argument for it in order to decide an issue.Pettit,171 Wis. 2d at 647.That is the situation here.Accordingly, the court rejects the
Holmquists’ argument regarding the circuit court’s involvement in proceedings
as inadequately developed.

2.Forfeiture of Argument
Before Circuit Court

¶18Additionally, the Holmquists’ attorney failed to object in the
circuit court to the circuit court’s questioning of Budick, which would have
given the court an opportunity to consider altering its approach or to explain
the reasoning behind the court’s approach.Ordinarily, the failure to raise a timely objection during trial
constitutes forfeiture for the purposes of an appeal.See Allen v. Allen, 78 Wis. 2d
263, 270, 254 N.W.2d 244 (1977) (concluding that the Wisconsin Supreme Court
has consistently held it will not entertain issues raised for the first time on
appeal); see alsoTerpstra
v. Soiltest, Inc., 63 Wis. 2d 585, 594, 218 N.W.2d 129 (1974) (concluding
that specific objections must be made at the trial court level in order to be
preserved).If there is some reason why
the forfeiture rule should not be applied here, the Holmquists have not
identified it.

3.Purported
Argument Appears to Fail on Its Merits

¶19As indicated, the Holmquists’ argument is too undeveloped for
this court to definitively resolve it on its merits.However, even if this court entertains the
only colorable contention, namely, that the Holmquists mean to argue that the
circuit court unfairly involved itself in the proceedings, the Holmquists have
not persuaded the court that this contention may have merit.As noted above, as best as this court can
ascertain from the Holmquists’ undeveloped argument, they may mean to argue
that the circuit court, in effect, unfairly became an advocate for Kealey by
questioning Budick, or at least by questioning Budick so extensively. This court disagrees.

¶20Contrary to what the Holmquists may be arguing, Wis. Stat. § 799.209(1) permits a circuit
court to conduct small claims actions informally, and § 799.209(3) permits
the court to question witnesses “to ensure that the claims or defenses of all
parties are fairly presented.”[3]Here, this is what the circuit court did, gearing
its line of questioning for the purpose of disclosing facts pertinent to making
a proper determination on the issues. This
court notes that at least some of the circuit court’s questioning, namely that
resulting in Budick’s concession that he was aware of no legal basis to
withhold the Holmquists’ security deposit, favored the Holmquists and lends
support to a conclusion that the court was not acting unfairly as an advocate
for one side.In addition, this case
does not involve a jury trial, so there was no risk that a jury would be
improperly influenced by any aspect of the judge’s involvement.

¶21Of course, circuit courts must not function as partisans or
advocates or engage in excessive examination.SeeState v. Carprue, 2004 WI
111, ¶44, 274 Wis. 2d 656, 683 N.W.2d 31; see
also State v. Jiles, 2003 WI 66,
¶39, 262 Wis. 2d 457, 663 N.W.2d 798 (holding that a trial judge must not
permit himself or herself to become an advocate for one party).However, the record does not support a view
that this occurred here.

¶22In Jiles, “[w]hen
the State showed surprise that [a defendant] had filed a suppression motion,
the circuit court intervened and assumed the State’s burden of establishing the
existence of proper Miranda warnings and voluntariness.”Jiles,262 Wis. 2d 457, ¶38.The
court took over, sua sponte, and dominated the hearing to such an extent that counsel
for the State could barely get a word in, much less present evidence.Id.Based partially on the circuit court’s failure to provide a full and
fair evidentiary hearing, the Wisconsin Supreme Court overturned the
defendant’s conviction.Id.,
¶49.

¶23This court does not view the court’s questioning here as resembling
the advocacy or excessive examination that occurred in Jiles.Although the line may not always be clear,
this court can confidently say that the circuit court here did not cross it.This is particularly true given the
relatively informal nature of small claims proceedings, such as the
landlord-tenant dispute at issue here, which may often require a court or
commissioner to examine witnesses at least to some degree.SeeWis. Stat. §§ 799.209(1)
and (3).

¶24It is possible that the Holmquists intend to argue that they
were deprived of their right to an impartial judge, a fundamental element of
due process.SeeFranklin v. McCaughtry, 398 F.3d 955, 959 (7th Cir. 2005).However, we presume that a judge has acted
fairly, impartially, and without bias, unless that presumption is
rebutted.State v. Gudgeon, 2006 WI
App 143, ¶20, 295 Wis. 2d 189, 720 N.W.2d 114.When evaluating whether a defendant has rebutted the presumption in
favor of the judge’s impartiality, we generally apply two tests, one subjective
and one objective.State v. Rochelt, 165
Wis. 2d 373, 378, 477 N.W.2d 659 (Ct. App. 1991).Because the Holmquists do not develop any
argument showing there was either subjective or objective bias the presumption
is not rebutted here.

¶25The Holmquists next argue that the circuit court erred by not
recognizing their rights under the “Landlord/Tenant Protection Act” and under Wis. Stat. § 846.35(2)(a)2. For the following reasons, this court is not
persuaded.

1.Failure
to Properly Develop Argument on Appeal

¶26The Holmquists’ reliance on the “Wisconsin Landlord/Tenant
Protection Act” is undeveloped.One
major defect in the argument is that they cite no specific statutory
provision.It may be that the Holmquists
intend to refer to some provision in Wis.
Stat. ch. 704 (“LANDLORD AND TENANT”).However, without citation to a particular statute or any further
explanation, this court is unable to address any argument based on broad
reference to that chapter as a whole.SeePettit, 171 Wis. 2d at 646.

¶27The Holmquists’ argument based on Wis. Stat. § 846.35(2)(a)2. is also too brief and not well developed.Although the Holmquists cite to a specific
statutory provision, § 846.35(2)(a)2., they simply restate the language of
the statute and fail to include any analysis, based on the facts, as to how or
why it applies here.[4]Therefore, the court could decline to address
their § 846.35(2)(a)2.-based argument further.

2.Wisconsin
Stat. § 846.35(2)(a)2. Argument Would Fail on the Merits

¶28Even if this court were to address the merits of the
Holmquists’ Wis. Stat. § 846.35(2)(a)2.-based
argument, as best this court understands it, their argument would likely fail, because
the unrefuted evidence in the record shows that the Holmquists failed to pay
(or withheld) at least $3,600 in rent, which is more than the total amount of
their security deposit, $2,400.If there
is some reason why this evidence is not dispositive on the applicability of the
statute, the Holmquists have failed to point it out.There may be additional reasons why the
Holmquists’ reliance on the statute fails, but it is enough for this court to
identify one reason.[5]

CONCLUSION

¶29For the reasons stated above, this court affirms the circuit
court’s judgment of eviction, which also upholds the writ directing the sheriff
to put Kealey in possession of the premises.

By the Court.—Judgment affirmed.

This
opinion will not be published.See Wis.
Stat. Rule 809.23(1)(b)4.

[1] This
appeal is decided by one judge pursuant to Wis.
Stat. § 752.31(2)(a) (2009-10).All references to the Wisconsin Statutes are to the 2009-10 version
unless otherwise noted.

[2]Wisconsin Stat. Rule 809.19(1)(e) provides, in relevant part, that
“[t]he argument on each issue … is to contain the contention of the appellant,
the reasons therefor, with citations to the authorities, statutes and parts of
the record relied on as set forth in the Uniform System of Citation and SCR
80.02.”

Procedure.At any trial,
hearing or other proceeding under this chapter:

(1) The court or circuit court commissioner shall
conduct the proceeding informally, allowing each party to present arguments and
proofs and to examine witnesses to the extent reasonably required for full and
true disclosure of the facts.

….

(3) The court or circuit court commissioner may conduct
questioning of the witnesses and shall endeavor to ensure that the claims or
defenses of all parties are fairly presented to the court or circuit court
commissioner.

(2)Extended possession of premises; withholding last month’s rent.(a) Notwithstanding ch. 704, all
of the following apply to a tenant whose tenancy is terminated as a result of a
foreclosure judgment and sale with respect to the rental property:

….

2. The
tenant may withhold rent in an amount equal to the security deposit during the
last period the tenant actually retains possession of the rental unit ….

[5] 2011
Wisconsin Act 32, enacted on June 26, 2011, repealed Wis. Stat. § 846.35(2)(a)2.,
with an effective date relating to the date a foreclosure action is
commenced.See 2011 Wis. Act 32, §§ 3492m and 9355.For purposes of this opinion, this court will
assume, without deciding, that the effective date of the repeal does not
necessarily preclude the statute’s applicability to this case.This court notes that it received no response
brief from Kealey and therefore does not have the benefit of his position on
this or other issues.